Var går gränsen mellan positiv särbehandling och könsdiskriminering?

Sammanfattning

The following essay examines the distinction between positive action and gender discrimination under Swedish and EU law. The purpose has been to examine the conditions under which positive action is permitted under current law, to determine where the line is drawn between positive action and gender discrimination. The study is based on a dogmatic method in which the Discrimination Act, EU directives and case law from the Court of Justice of the European Union form the basis of the analysis. The analysis shows that positive action is permitted only as a narrow exception to the prohibition of discrimination. It requires that the active action is not applied automatically, that the applicants have equivalent merits, and that the measure is proportionate. Swedish law follows this restrictive approach and primarily emphasizes structural active measures. The conclusion is that the line between positive action and gender discrimination is crossed when the measure is no longer individual, objective, and proportionate, but instead based on gender.